Comparative Study on Parliamentary Powers and Privileges

1. Comparative study on international best practices and conventions relating to parliamentary powers and privileges NA TABLE 29 November 2017

2. INTRODUCTION Ad Hoc Committee on Review of Powers and Privileges Act commissioned a research paper on international best practice relating to parliamentary powers and privileges. Questionnaire developed in consultation with the committee chairperson comprising five questions. Ten Parliaments were contacted but only five responded, namely: New Zealand, Kenya, Canada, United Kingdom and Australia. Five Questions • How does your Parliament make provision for parliamentary powers and privileges? • Does your Parliament place any limitations on parliamentary powers and privileges, if so, how is this done? • What developments have there been in terms of parliamentary powers and privileges in your Parliament over the last ten years? • How does your Parliament deal with contempt by members? • Does your Rules and Orders or legislation provide for forceful removal of members from the Chamber for breach of privilege, contempt or disruptions. If not, what mechanisms are in place to deal with “disturbance” or “gross misconduct” during House proceedings?

3. DEFINITIONS What is parliamentary privilege? According to Gordon and Jack, “privilege refers to a specific right or advantage; an exemption from a rule or a norm which puts its possessor in a different position from everyone else”. This right or advantage or benefit is reserved for a certain group, and in the case of Parliament, it is a right enjoyed by Members of Parliament. Erskine May 22nd edition defines parliamentary privilege as “…parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament; and by Members of the House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined in statute”. Parliamentary privilege preserves the exclusive rights of Members to freely attend to the public affairs of the House, without disturbance or interruption and to freely express themselves (free speech) without fear from arrest or civil prosecution.

4. DEFINITIONS Parliamentary precinct? Parliamentary precinct is generally defined as the designated area of land or building(s) or part of the building(s) under Parliament’s control, including the Chambers, every part of the building(s) in which the Chamber is situated, members’ offices, and any forecourt, yard, garden, enclosure or open space used or provided for the purposes of that Parliament. This definition is similar to the one in section 2 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act (Act 4 of 2004) which extends to galleries and lobbies of the Chambers, committee rooms and other meeting rooms; and every other building or part of a building provided or used in connection with the proceedings of Parliament, while so used. In some countries, like Kenya, this general definition extends to parliamentary accommodation for members (i.e. parliamentary villages).

5. PARLIAMENT OF KENYA Provision for parliamentary powers and privileges “Article 117 of the Constitution of Kenya provides that ‘there shall be freedom of speech and debate in Parliament’ and that ‘Parliament may, for the purpose of the orderly and effective discharge of the business of Parliament, provide for the powers, privileges and immunities of Parliament, its committees, the leader of the majority party, the leader of the minority party, the chairpersons of committees and members”. The National Assembly (Powers and Privileges) Act was enacted on 22 April 1952. The Act is currently being repealed through the Parliamentary Powers and Privileges Bill 2014. The new Bill establishes for each House of Parliament (National Assembly and the Senate) a Committee of Privileges. Bill creates new offences and penalties, a Code of Conduct and a disciplinary process.

6. PARLIAMENT OF KENYA Forceful removal of Members from the Chamber Standing Order 101 of the National Assembly states that: “If any Member shall refuse to withdraw when required to do so, by or under these Standing Orders, the Speaker or the Chairperson of Committee as the case may be, having called the attention of the House or Committee to the fact that recourse to force is necessary in order to compel such Member to withdraw, shall order such Member to be removed and such Member shall thereupon without question put be suspended from the service of the House during the remainder of the Session and shall during such suspension, forfeit the right of access to the precincts of Parliament and the Serjeant-at-Arms shall take necessary action to enforce the order”.

7. PARLIAMENT OF KENYA Findings and recommendations of the Committee of Privileges • proposed changes to Standing Order 111 to provide for uniformity of punishment. • recommended its proposals to the Procedure and House Rules Committee to be incorporated in the review process of Standing Orders of the House.

8. UNITED KINGDOM (UK) PARLIAMENT • Provisions for parliamentary powers and privileges • The powers and privileges of the House of Commons and the House of Lords are not codified in a single document or in statute. Both Houses enjoy the same privileges which include: • freedom of speech; • control by the House of its affairs ("exclusive cognisance"); • power to discipline its own members for misconduct and punish anyone, whether a member or not, for contempt of Parliament; • exemption from Acts of Parliament within the precincts of either House unless there is express provision that they should apply; • freedom from interference in going to, attending at, and going away from Parliament; • freedom from arrest in civil cases; • exemption from subpoenas to attend court as a witness; • freedom from service of court documents within the parliamentary precincts; and • absolute protection of all papers published by order of either House

9. UNITED KINGDOM (UK) PARLIAMENT Article 9 of the 1689 Bill of Rights • provides that the freedom of speech in debates or proceedings in Parliament should not to be impeached or questioned in any court or place out of Parliament. • [rights include freedom of speech in debate, freedom from arrest, freedom of access to the Queen and that the most favourable construction should be placed upon all proceedings]. Limitations on parliamentary powers and privileges Privilege belongs to the House itself. Individual Members enjoy parliamentary privilege only as far as is necessary to perform their parliamentary duties but they are subject to the general law in the same way as other citizens. • Right to free speech is limited by the Rules of Order.

10. UNITED KINGDOM (UK) PARLIAMENT Recent developments relating to parliamentary powers and privileges over the past 10 years • Green Paper on parliamentary privilege was published in 2012, in light of developments over the years: highlighting issues of privilege relating to police searches on parliamentary estate in 2010, criminal prosecution of a group of former Members in 2010 for falsely claiming expenses, and allegations that some Members’ phones had been illegally accessed by journalists. • Green Paper on parliamentary powers and privileges served before the Joint Committee of Parliamentary Privileges and the Committee made recommendations in July 2013. To date, Report has not been agreed to by either House.

11. UNITED KINGDOM (UK) PARLIAMENT Contempt of Parliament procedure • Matters of breach of privilege are referred by the Speaker to the Committee of Privileges. • Once the Committee of Privileges has completed its inquiry, it reports back to the House with recommendations for sanctions where necessary. • House considers committee’s report and recommendations. • Sanctions range from demanding an apology from the member, suspending a member from the House for a specific period, the member may also be admonished, either in person by the Speaker in the Chamber or by means of a House resolution. Suspension entails the loss of salary for the period specified. Forceful removal of member from the House • Standing Order No. 43 empowers the Speaker to order a member whose conduct is grossly disorderly to withdraw and to order the Serjeant-at-Arms to take action in pursuance of that order. • Member refusing to leave may be `named’ by the Chair, following which a motion to suspend the member from the service of the House is immediately moved. • In a case of grave disorder, Speaker can adjourn the House.

12. PARLIAMENT OF CANADA Provisions for parliamentary powers and privileges • Section 18 of the Constitution Act, 1867 “The Privileges, Immunities, and Powers to be held, enjoyed, and exercised by the Senate and by the House of Commons and by the Members thereof respectively shall be such as are from Time to Time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the Members thereof.”

13. PARLIAMENT OF CANADA Contempt by members • Member wishing to raise a question of privilege in the House must first convince the Speaker that his/her concern is prima facie a question of privilege. • House decides whether a breach of privilege or a contempt has been committed. Forceful removal of members from the House • House can enforce the removal of a member for breaches of privilege or contempt. • House has exclusive right to determine its own membership and has the final word on who can sit in the House. • House has a right to discipline, censure, reprimand, summon individuals to the Bar of the House, punish (by incarceration) persons guilty of breaches of privilege or contempt. • House can also expel members guilty of conduct determined as breaches of privileges of the House, or as contemptuous of the House.

14. NEW ZEALAND PARLIAMENT Provisions for parliamentary powers and privileges • Parliamentary Privilege Act 2014. • Act clarifies nature, scope, and extent of privileges, immunities, and powers exercisable by the House of Representatives, its committees and members. Recent developments in relation to parliamentary powers and privileges • Attorney-General and Gow v Leigh [2011]. • Privilege Committee considered potential effect of court decision on future operations of House and made recommendations. • Parliamentary Privilege Bill introduced to clarify nature of parliamentary privilege. • Bill to make explicit that a member, or any person participating directly in or reporting on parliamentary proceedings, who makes an oral or written statement that affirms or adopts what he/she or another person has said in the House/committees will not be liable to criminal or civil proceedings unless statement could be defamatory.

15. NEW ZEALAND PARLIAMENT Forceful removal of members from the Chamber Standing Order 89 deals with disorderly conduct of a member in the House. “If a member who is suspended refuses to withdraw voluntarily from the House at once, the Serjeant-at-Arms will be called on by the Speaker to enforce the House’s direction. Should force prove to be necessary, the Speaker calls the House’s attention to this fact and the contumacious member is automatically suspended from the service of the House for the remainder of the calendar year.

16. PARLIAMENT OF AUSTRALIA Provisions for parliamentary powers and privileges Section 49 of the Australian Constitution states that the powers, privileges and immunities of the Commonwealth Parliament are the same as those of the House of Commons of the United Kingdom at the time the Commonwealth was established on 1 January 1901. Contempt Contempt is defined as conduct that amounts to or is likely to amount to, improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member. Forceful removal of Members Standing Orders make provision for the Houses to deal with disorderly conduct by members. Members can be suspended in terms of the Rules of Parliament. Although members can be suspended for lengthy periods, in terms of the Parliamentary Privileges Act 1987, a House does not have power to expel a member from membership of a House.

17. CONCLUSION Parliamentary privilege exists for the purpose of enabling the Houses of Parliament and Members of Parliament to carry out effectively their functions. The primary functions of the Houses are to inquire, to debate and to legislate, and parliamentary privilege therefore facilitates and protects these functions. The challenge arises when these privileges and immunities are abused by Members. Furthermore, where there is a potential clash between human rights and the absolute freedom of parliamentary privilege, then the courts must intervene. Judicial examination, however, must be limited to ensuring that Parliament does not seek to exercise its powers in an unlawful way. It is not for the courts to sit in judgement on individual actions taken within the parliamentary process. The courts no doubt have a role in assisting the articulation of the extent of parliamentary privilege, but it is for Parliament itself to determine how it exercises that privilege.